Brody v. Catell City of Seattle v. Blume Clayton v. … ROHRBACK L.L.P. 1201 Third Avenue, Suite 3200 Seattle, Washington 98101-3052 TELEPHONE: (206) 623-1900 FACSIMILE: (206) 623-3384

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PLAINTIFF’S MOTION AND MEMORANDUM IN SUPPORT OFFINAL APPROVAL OF CLASS ACTION SETTLEMENT ANDAPPLICATION FOR AN AWARD OF ATTORNEYS’ FEES ANDREIMBURSEMENT OF EXPENSES (15-2-20458-1SEA)

KELLE R ROHRB ACK L .L .P .1201 Third Avenue, Suite 3200

Seattle, Washington 98101-3052T E L E P H O N E : ( 2 0 6 ) 6 2 3 - 1 9 0 0F A C S I M I L E : ( 2 0 6 ) 6 2 3 - 3 3 8 4

The Honorable Hollis R. HillHearing Date: May 10, 2016Hearing Time: 8:30 AM

SUPERIOR COURT OF WASHINGTON IN AND FOR KING COUNTY

SHIVA Y. STEIN, individually and on behalfof all others similarly situated,

Plaintiff,-against-

SYMETRA FINANCIAL CORPORATION,LOWNDES A. SMITH, PETER S. BURGESS,DAVID T. FOY, LOIS W. GRADY, SANDERM. LEVY, ROBERT R. LUSARDI, THOMASM. MARRA, SUMITOMO LIFE INSURANCECOMPANY, and SLIC FINANCIALCORPORATION

Defendants.

No. 15-2-20458-1SEA

PLAINTIFF’S MOTION ANDMEMORANDUM IN SUPPORT OFFINAL APPROVAL OF CLASS ACTIONSETTLEMENT AND APPLICATIONFOR AN AWARD OF ATTORNEYS’FEES AND REIMBURSEMENT OFEXPENSES

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PLAINTIFF’S MOTION AND MEMORANDUM IN SUPPORT OFFINAL APPROVAL OF CLASS ACTION SETTLEMENT ANDAPPLICATION FOR AN AWARD OF ATTORNEYS’ FEES ANDREIMBURSEMENT OF EXPENSES (15-2-20458-1SEA) i



TABLE OF CONTENTS

I. RELIEF REQUESTED .................................................................................................... 1

II. ISSUES PRESENTED ..................................................................................................... 1

III. EVIDENCE RELIED UPON ........................................................................................... 2

IV. STATEMENT OF FACTS............................................................................................... 2

V. TERMS OF THE SETTLEMENT ................................................................................... 5

VI. THE PROPOSED SETTLEMENT WARRANTS PRELIMINARYAPPROVAL ..................................................................................................................... 5

A. Standards for Final Approval................................................................................ 5

B. The Settlement Provides substantial Benefits to the Punitive Class..................... 7

VII. CLASS CERTIFICATION FOR PURPOSES OF SETTLEMENT ISPROPER ......................................................................................................................... 13

1. The Settlement Class Meets the Requirements ofWashington Civil Rule 23(a). ................................................................. 14

2. The Settlement Class Should Be Certified UnderWashington Civil Rule 23(b)(1)-(2). ...................................................... 15

3. The Notice of Pendency and Proposed SettlementComplied with Washington Civil Rule 23(e). ........................................ 15

VIII. THE ATTORNEY’S FEES PROVISIONS OF THE SETTLEMENTSHOULD ALSO BE APPROVED ................................................................................ 17

A. PLAINTIFF’S COUNSEL’S REQUEST FOR AN AWARD OFATTORNEYS’ FEES AND EXPENSES IS FAIR ANDREASONABLE.................................................................................................. 17

B. The Requested Agreed-To Attorneys’ Fees Award Is ReasonableUnder the Lodestar Approach............................................................................. 18

1. The Contingent Nature of the Litigation. ............................................... 20

2. The Quality of the Work Performed. ...................................................... 22

IX. CONCLUSION............................................................................................................... 23

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PLAINTIFF’S MOTION AND MEMORANDUM IN SUPPORT OFFINAL APPROVAL OF CLASS ACTION SETTLEMENT ANDAPPLICATION FOR AN AWARD OF ATTORNEYS’ FEES ANDREIMBURSEMENT OF EXPENSES (15-2-20458-1SEA) ii



TABLE OF AUTHORITIES

Cases

Am. Safety Cas. Ins. Co. v. City of Olympia,162 Wn.2d 762, 174 P.3d 54 (2007).........................................................................................6

Bowers v. Transamerica Title Ins. Co.,100 Wn.2d 581, 675 P.2d 193 (1983)...............................................................................20, 21

Brody v. Catell,841 N.Y.S.2d 825, 16 Misc. 3d 1105(A) (N.Y. Sup. Ct. 2007) .............................................22

City of Detroit v. Grinnell Corp.495 F.2d 448, 470 (2d Cir. 1974) ...........................................................................................21

City of Roseville Employees’ Retirement System v. Ellison,C.A. No. 6900-VCP (Order) (Del. Ch. June 16, 2014) ..........................................................17

City of Seattle v. Blume,134 Wn.2d 243, 947 P.2d 223 (1997).......................................................................................6

City of Tamarac Firefighter Pension Trust Fund v. Icahn,C.A. No. 7597-CB (Order) (Del. Ch. May 16, 2014).............................................................17

Clayton v. Orthovita, Inc.,No. 11-3535, slip op. (D. Pa. Aug.16, 2012)............................................................................7

CLRB Hanson Industries, LLC v. Weiss & Associates,465 Fed. App’x 617, 2012 WL 20539....................................................................................16

De Funis v. Odegaard,84 Wn.2d 617, 529 P.2d 438 (1974).......................................................................................15

Feuer v. Thompson,10-CV-00279 YGR, 2012 WL 6652597 (N.D. Cal. Dec. 13, 2012) ......................................17

GAF MANX,2013 WL 2897874 (C.D. Cal. June 6, 2013) .........................................................................17

Girsh v. Jepson,521 F.2d 153 (3d Cir. 1975) .....................................................................................................6

Goldberger v. Integrated Resources, Inc.,209 F.3d 43 (2d Cir. 2000) .....................................................................................................21

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PLAINTIFF’S MOTION AND MEMORANDUM IN SUPPORT OFFINAL APPROVAL OF CLASS ACTION SETTLEMENT ANDAPPLICATION FOR AN AWARD OF ATTORNEYS’ FEES ANDREIMBURSEMENT OF EXPENSES (15-2-20458-1SEA) iii



Hanlon v. Chrysler Corp.,150 F.3d 1011 (9th Cir. 1998) ................................................................................................14

In re Adolor Corp. S’holders Litig.,C.A. No. 6997-VCN (Del. Ch. Sept. 20, 2012)........................................................................7

In re Astex Pharmaceuticals, Inc. Stockholders Litigation,C.A. No. 8917-VCL (Order) (Del.Ch. Jan. 7, 2015) ..............................................................17

In re Brookdale Bond Litig.,No. 02-ML-1475-DT, 2005 U.S. Dist. LEXIS 13627 (C.D. Cal. June 10,2005) .......................................................................................................................................21

In re Celera Corp. S’holders Litig.,No. 6034-VCP, 2012 WL 1020471 (Del. Ch. Mar. 23, 2012), aff’d in part &rev’d in part, 59 A.3d 418 (Del. 2012) ...................................................................................10

In re Hanover Direct, Inc. S’holders Litig.,C.A. No. 1969-CC, 2010 WL 3959399 (Del. Ch. 2010)..........................................................8

In re Interactive Data S’holders Litig.,No. 5498-CC (Del. Ch. Nov. 5, 2010)....................................................................................23

In re Isilon Sys., Inc. S’holders Litig.,No. 10-2-41098-8 SEA (Wash. Sup. Ct. Nov. 29, 2011) .......................................................23

In re MRV Communications, Inc. Derivative Litig.,CV 08-03800 ..........................................................................................................................17

In re Nasdaq Market- Makers Antitrust Litig.,187 F.R.D. 465 (S.D.N.Y. 1998) ............................................................................................22

In re Radiology Assocs., Inc. Litig.,611 A.2d 485 (Del. Ch. 1991) ..................................................................................................8

In re Rambus Inc. Derivative Litig.,C 06-3513 JF (HRL), 2009 WL 166689 (N.D. Cal. Jan. 20, 2009) .......................................17

In re Talley Indus., Inc., S’holders Litig.,C. A. No. 15961, 1998 WL 191939 (Del. Ch. 1998)..............................................................18

In re Washington Banking Comp. S’holders Litig.,No. 13-2-38689-5 SEA (Wash. Sup. Ct. Feb. 27, 2015) ........................................................23

In re Wm. Wrigley Jr. Co. S’holders Litig.,C. A. No. 3750-VCL, 2009 WL 154380 (Del. Ch. 2009) ..................................................7, 15

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PLAINTIFF’S MOTION AND MEMORANDUM IN SUPPORT OFFINAL APPROVAL OF CLASS ACTION SETTLEMENT ANDAPPLICATION FOR AN AWARD OF ATTORNEYS’ FEES ANDREIMBURSEMENT OF EXPENSES (15-2-20458-1SEA) iv



In re ZymoGenetics, Inc. S’holders Litig.,No. 10-2-32389-9 SEA (Wash. Sup. Ct. Mar. 11, 2011) .......................................................23

Johnson v. Ga. Highway Express,488 F.2d 714 (5th Cir. 1974) ..................................................................................................21

Mahler v. Szucs,135 Wn.2d 398, 957 P.2d 632 (1998).....................................................................................19

Marquardt v. Fein,25 Wn. App. 651, 612 P.2d 378 (1980)..................................................................................15

Mills v. Electric Auto-Lite Co.,396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970)...........................................................7, 18

Nottingham Partners v. Dana,564 A.2d 1089 (Del. 1989) .....................................................................................................15

Oda v. State,111 Wn.App. 79, 44 P.3d 8 (2002).........................................................................................15

Officers for Justice v. Civil Service Commission,688 F.2d 615 (9th Cir. 1982) ..................................................................................................13

Pelletz v. Weyerhaeuser Co.,592 F. Supp. 2d 1322 (W.D. Wash. 2009) .......................................................................19, 20

Pickett v. Holland America Line-Westours,Inc., 145 Wn.2d 178, 35 P.3d 351 (2001)......................................................................5, 7, 15

Prescott Grp. Small Cap, L.P. v. Coleman Co.,C.A. No. 17802, 2004 WL 2059515 (Del. Ch. 2004)...............................................................8

Seattle Trust & Sav. Bank v. McCarthy,94 Wn.2d 605, 617 P.2d 1023 (1980).....................................................................................18

Seinfeld v. Slager,C.A. No. 6462-VCG (Order) (Del. Ch. Nov. 27, 2013) .........................................................17

State of Wis. Inv. Bd. v. Bartlett,C. A. No. 17727, 2002 Del. Ch. LEXIS 42 (Del. Ch. 2002), aff’d, 808 A.2d1205 (Del. 2002).....................................................................................................................18

Stroud v. Grace,606 A.2d 75 (Del. 1992) ...........................................................................................................7

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Tandycrafts v. Initio Partners,562 A.2d 1162 (Del. 1989) .....................................................................................................18

Turberg v. ArcSight Inc.,C.A. No. 5821-VCL (Del. Ch. Sept. 20, 2011) ........................................................................9

Ubaney v. Rubinstein,No. 5459-VCL (Del. Ch. Dec. 1, 2010)..................................................................................23

Vizcaino v. Microsoft Corp.,290 F.3d 1043 (9th Cir. 2002) ................................................................................................20

Weiss v. Bruno,83 Wn.2d 911, 523 P.2d 915 (1974).......................................................................................18

Zimmer v. City of Seattle,19 Wn.App. 864, 578 P.2d 548 (1978)...................................................................................14

Other Authorities

Fed. R. Civ. P. 23............................................................................................................................6

Washington Civil Rule 12(b)(3) .................................................................................................2, 3

Washington Civil Rule 23 ................................................................................................14, 15, 16

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PLAINTIFF’S MOTION AND MEMORANDUM IN SUPPORT OFFINAL APPROVAL OF CLASS ACTION SETTLEMENT ANDAPPLICATION FOR AN AWARD OF ATTORNEYS’ FEES ANDREIMBURSEMENT OF EXPENSES (15-2-20458-1SEA) 1



I. RELIEF REQUESTED

Plaintiff Shiva Y. Stein, a stockholder of Symetra Financial Corporation (“Symetra” or

the Company”), submits this Motion and Memorandum in support of her request for entry of the

[Proposed] Order and Final Judgment Pursuant to CR 23(a), 23(b)(1) and 23(b)(2) (the “Final

Order”), submitted herewith. The Final Order will: (a) approve the proposed settlement (the

“Settlement”) set forth in the Stipulation of Settlement dated February 2, 2016, as revised on April

7, 20161 (the “Stipulation”)2, which is submitted herewith, of the above-captioned class action

(the “Action”); (b) certify a settlement class (“Settlement Class”)3; and (c) approve a request for

an uncontested award of $275,000 in attorneys’ fees plus $13,907.76 for reimbursement of

expenses. For the reasons set forth herein, Plaintiff respectfully requests that the Court approve

the Settlement and attorneys’ fee application and reimbursement of expenses in its entirety.

II. ISSUES PRESENTED

The first question is whether the proposed Settlement is fair, reasonable, adequate, and in

the best interests of the Settlement Class. The second question is whether the Court should certify

1 The Stipulation was revised to further narrow the release language in keeping with recent Delaware jurisprudenceregarding settlement releases and to correct a scrivener’s error concerning Plaintiff’s request for attorneys’ fees.The release language in the Stipulation was narrowed to explicitly preserve any claims of the members of the classin their capacity as stockholders for matters that are not related to the Merger. Declaration of Karin Swope InSupport of Plaintiff’s Motion and Memorandum in Support of Final Approval of Class Action Settlement andApplication for an Award of Attorneys’ Fees and Reimbursement of Expenses (“Swope Decl.”), Ex. 4.Additionally, the parties agreed in the Memorandum of Understanding dated October 27, 2015 (“MOU”) thatDefendants would not oppose Plaintiff’s application for up to $275,000 for attorneys’ fees plus up to $15,000 inreimbursement for expenses; however, the Stipulation dated February 2, 2016, incorrectly stated that Defendantsagreed to not oppose an aggregate fee and expense award of up to $270,000. Thus, the Stipulation was revised toreflect the true intent of the parties as agreed to in the MOU.

2 Unless otherwise defined, all capitalized terms have the same meanings ascribed to them in the Stipulation.3 Pursuant to the Stipulation, the “Settlement Class” is defined as a non-opt-out class consisting of all record and

beneficial owners of common stock of Symetra who owned shares of Symetra common stock at any time duringthe period beginning on August 11, 2015, through February 1, 2016, including any and all of their respectivesuccessors in interest, successors, predecessors in interest, predecessors, representatives, trustees, executors,administrators, heirs, assigns or transferees, immediate and remote, and any person or entity acting for or on behalfof, or claiming under, any of them, and each of them, together with their predecessors, successors and assigns.Swope Decl. Ex. 4.

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the Settlement Class for purposes of effectuating the Settlement.

III. EVIDENCE RELIED UPON

Plaintiff relies upon this Motion and the Stipulation submitted herewith, the records and

files of the Court, and such other evidence and arguments as may be submitted by the parties.

IV. STATEMENT OF FACTS

This litigation arose from the acquisition of Symetra by Sumitomo Life Insurance

Company (“Sumitomo”).

On August 11, 2015, Symetra and Sumitomo announced that they entered into a merger

agreement (“Merger Agreement”), pursuant to which Sumitomo would acquire all of the

outstanding shares of Symetra for $32.00 per share in cash and a $0.50 special dividend (the

“Merger”).

On August 20, 2015, Plaintiff filed a complaint in the Court, on behalf of herself and those

similarly situated stockholders of Symetra, against Defendants, alleging certain breaches of

fiduciary duty and aiding and abetting liability in connection with the Merger.

On September 1, 2015, Symetra filed with the Securities and Exchange Commission

(“SEC”) a Preliminary Proxy Statement on Schedule 14A (the “Preliminary Proxy”).

On September 11, 2015, Defendants filed a Motion to Dismiss the Action for improper

venue pursuant to Washington Civil Rule 12(b)(3).

On September 24, 2015, Plaintiff moved to amend her complaint in order to add

allegations regarding the omission of certain material disclosures in the Preliminary Proxy.

On October 1, 2015, Defendants opposed Plaintiff’s motion to amend. The Court granted

Plaintiff’s motion to amend her complaint on October 12, 2015.

On September 30, 2015, Symetra filed with the SEC a Definitive Proxy Statement on

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Schedule 14A (the “Proxy Statement”) which, among other things, announced that a stockholder

meeting to vote on the adoption of the Merger Agreement would be held on November 5, 2015.

On October 1, 2015, counsel for Plaintiff conveyed to Defendants a confidential settlement

communication, wherein she demanded that Symetra make certain supplemental disclosures

(“Supplemental Disclosures”) in connection with the Proxy Statement.

On October 16, 2015, Plaintiff filed an amended complaint in the Court to add an

additional claim of breach of the fiduciary duty of disclosure, and an assertion that the Proxy

Statement was deficient and misleading in that it failed to provide adequate disclosure of material

information related to the Merger.

On October 16, 2015, Plaintiff also filed a Motion for Preliminary Injunction to enjoin the

stockholder vote from taking place as scheduled on November 5, 2015, until such time as

Defendants made complete disclosures regarding the Merger.

On October 20, 2015, Defendants filed a Motion to Dismiss Plaintiff’s Amended

Complaint for improper venue pursuant to Washington Civil Rule 12(b)(3).

Counsel for Defendants and Plaintiff’s Counsel thereafter engaged in extensive arm’s-

length discussions and negotiations regarding a potential resolution of the claims asserted in the

Action. The agreement, memorialized in the MOU, contemplated a release and settlement by

Plaintiff and the Settlement Class of all claims against Defendants in connection with the Merger,

and in exchange Symetra would promptly make certain agreed-upon Supplemental Disclosures

regarding the Merger that Plaintiff alleged were material to Symetra stockholders considering

whether to adopt the Merger Agreement.

On October 27, 2015, as contemplated by the MOU, Symetra filed with the SEC a Current

Report on Form 8-K which contained the Supplemental Disclosures. The Supplemental

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Disclosures included material information relating to, inter alia: (a) the sales process that led to

the Merger; and (b) certain assumptions, inputs, and findings in connection with the financial

analyses utilized by Morgan Stanley, the Board’s financial advisor.

On November 5, 2015, Symetra’s stockholders approved the Merger by way of a

stockholder vote.

Counsel for Defendants produced confirmatory discovery including, among other things

Board meeting minutes and valuation analyses relating to the Merger. Additionally, Plaintiff’s

counsel conducted a deposition of the Company’s President and CEO. Counsel for all parties to

the Action then reached an agreement in principle, set forth in the Stipulation. Counsel for Plaintiff

believes that the Settlement is fair, reasonable, adequate, and in the best interests of Plaintiff and

the Settlement Class.

On February 2, 2016, Plaintiff submitted her motion for preliminary approval of the class

action settlement (“Motion”). The Honorable Hollis R. Hill (“Judge Hill”) granted Plaintiff’s

Motion on February 12, 2016 and required Defendants to provide the Settlement Class with notice

of the preliminarily approved settlement. On February 26, 2016, KCC Class Action Services

informed the parties that it had begun to mail Settlement Class members the Notice of Pendency

and Proposed Settlement of Class Action as mandated by Judge Hill’s February 12, 2016 order.

Pursuant to the February 12, 2016 preliminary approval order, Plaintiff’s counsel created

webpages on the Pomerantz LLP website at http://pomerantzlawfirm.com/news-

accomplishments/symetra and the Keller Rohrback L.L.P. website at

http://krcomplexlit.com/currentcases/shiva-y-stein-v-symetra-financial-corporation-et-al/ that

contained important documents pertaining to this litigation including a copy of the amended

complaint, the MOU, the Notice, and the Stipulation.

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On April 4, 2016, Plaintiff’s Counsel published a press release over PRNewswire

notifying Class members of the terms of the Settlement, of the May 10, 2016 hearing, and of the

right of any member of the Class to appear at the hearing and to object to the Settlement. The

press release noted that Plaintiff would seek an award of attorneys’ fees in an amount not to exceed

$275,000 plus reimbursement of expenses up to $15,000, as agreed to by the parties, and directed

Class members to Plaintiff’s Counsel’s webpages. Swope Decl. Ex. 5.

V. TERMS OF THE SETTLEMENT

As a direct result of the prosecution of the Action and the extensive negotiations between

the settling parties, Symetra provided the Supplemental Disclosures concerning the Merger by

filing a Form 8-K with the SEC on October 27, 2015. Swope Decl. Ex. 4. The Supplemental

Disclosures are further described herein. In addition, the Settlement provides that Defendants or

their successor(s) shall pay $275,000 in attorneys’ fees plus up to $15,000 for reimbursement of

expenses, as ordered by the Court, to Plaintiff’s Counsel for their attorneys’ fees and expenses

related to the prosecution of the Action. This amount was negotiated between the parties only

after the substantive provisions of the Settlement had been resolved. Plaintiff’s Counsel have only

incurred expenses totaling $13,907.76 which is the amount they will be seeking at the May 10,

2016 settlement hearing.

VI. THE PROPOSED SETTLEMENT WARRANTS FINAL APPROVAL

A. Standards for Final Approval.

The procedural requirements of CR 23(e), which governs settlements of class action

litigation, provide for notice to proposed class members and then judicial approval. “[I]t is

universally stated that a proposed class settlement may be approved by the trial court if it is

determined to be ‘fair, adequate, and reasonable.’” Pickett v. Holland America Line-Westours,

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Inc., 145 Wn.2d 178, 188, 35 P.3d 351, 356 ( 2001).4 Further, “CR 23 is identical to its federal

counterpart, Fed. R. Civ. P. 23, and thus, federal cases interpreting the analogous federal provision

are highly persuasive.” Id.

In determining whether a settlement is fair, reasonable, and adequate, Washington courts

generally consider the following factors: “the likelihood of success by plaintiffs; the amount of

discovery or evidence; the settlement terms and conditions; recommendation and experience of

counsel; future expense and likely duration of litigation; recommendation of neutral parties, if

any; number of objectors and nature of objectors; and the presence of good faith and the absence

of collusion.” Id. at 356. The list is not exhaustive and “[t]he relative degree of importance to be

attached to any particular factor will depend upon and be dictated by the nature of the claim(s)

advanced, the type(s) of relief sought, and the unique facts and circumstances presented by each

individual case.” Id. (internal quotation marks omitted).

Approval of class-action settlements is considered against the backdrop that Washington

has a well-established and strong public policy favoring compromise over litigation. Am. Safety

Cas. Ins. Co. v. City of Olympia, 162 Wn.2d 762, 769, 174 P.3d 54, 59 (2007) (“Washington law

strongly favors the public policy of settlement over litigation”); City of Seattle v. Blume, 134

Wn.2d 243, 257, 947 P.2d 223, 230 (1997) (“[T]he express public policy of this state .

. . strongly encourages settlement.”). Indeed, in the class action context, the court’s review

“must be limited to the extent necessary to reach a reasoned judgment that the agreement is not

the product of fraud or overreaching by, or collusion between, the negotiating parties, and that the

4 In making the ultimate determination of whether the Settlement is fair and reasonable, the Court must also balancethe risks of establishing liability and damages against the immediacy and certainty of a substantial recovery. Girshv. Jepson, 521 F.2d 153, 157 (3d Cir. 1975).

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settlement, taken as a whole, is fair, reasonable and adequate to all concerned.” Pickett, 145

Wn.2d at 188 (internal quotation marks omitted). Application of the foregoing principles and

factors demonstrates that the Settlement is eminently fair, reasonable, adequate, and merits the

Court’s approval.

B. The Settlement Provides Substantial Benefits to the Putative Class.

Plaintiff procured a material benefit to the Settlement Class in the form of Supplemental

Disclosures which permitted Symetra stockholders to make informed decisions whether to vote

their shares in favor or against the Merger. Swope Decl. Ex. 6.

In Delaware, where Symetra is incorporated and in whose courts many challenges to

corporate takeovers are heard, the courts have consistently recognized that it is a fundamental

tenet of corporate law that stockholders are entitled to be fully informed of all material facts

concerning transactions requiring their approval. See, e.g., Stroud v. Grace, 606 A.2d 75, 84 (Del.

1992) (stating that it is a “well-recognized proposition that directors of Delaware corporations are

under a fiduciary duty to disclose fully and fairly all material information within the board’s

control when it seeks stockholder action”).

Indeed, a monetary benefit to the class “is not the sole touchstone of reasonableness when

reviewing the settlement of claims for equitable and injunctive relief challenging a corporate

merger.” In re Wm. Wrigley Jr. Co. S’holders Litig., C. A. No. 3750-VCL, 2009 WL 154380, 6

(Del. Ch. 2009); In re Adolor Corp. S’holders Litig., C.A. No. 6997-VCN, 2012 WL 4294031

(Del. Ch. Sept. 20, 2012) (order approving settlement of merger class litigation that entailed non-

pecuniary relief); Clayton v. Orthovita, Inc., No. 11-3535, slip op. (D. Pa. Aug.16, 2012) (same).

In Mills v. Electric Auto-Lite Co., the United States Supreme Court observed that “an increasing

number of lower courts have acknowledged that a corporation may receive a ‘substantial benefit’

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from a [stockholder’s action]” and that “regardless of the relief granted, private stockholders’

actions of this sort ‘involve corporate therapeutics,’ and furnish a benefit to all stockholders by

providing an important means of enforcement of the proxy statute.” 396 U.S. 375, 395-396 (1970)

(citations omitted).

Here, the Supplemental Disclosures provided Symetra stockholders with significant

additional information concerning Morgan Stanley’s financial analyses supporting its fairness

opinion. This includes material details concerning Morgan Stanley’s Comparable Company

Analysis and Precedent Transactions Analysis, which are two of the valuation methodologies

favored by the courts. See In re Hanover Direct, Inc. S’holders Litig., C.A. No. 1969-CC, 2010

WL 3959399 (Del. Ch. 2010). Here, Plaintiff was able to, among other things, obtain disclosure

of the criteria used to select the comparable companies and the precedent transactions. Because

of Plaintiff’s litigation, Defendants disclosed that Morgan Stanley considered only U.S.-based life

insurance companies in its analysis. This previously omitted information was material to Symetra

stockholders because it enabled them to determine for themselves whether the comparable

companies selected were, indeed, comparable to Symetra and whether Morgan Stanley employed

appropriate selection criteria. See In re Radiology Assocs., Inc. Litig., 611 A.2d 485, 490 (Del.

Ch. 1991) (“The utility of the comparable company approach depends on the similarity between

the company the court is valuing and the companies used for comparison. At some point, the

differences become so large that the use of the comparable company method becomes

meaningless for valuation purposes.”); Rosenbaum & Pearl, Investment Banking, at 11 (2009)

(stating that trading comps are “built upon the premise that similar companies provide a highly

relevant reference point for valuing a given target”); see also Prescott Grp. Small Cap, L.P. v.

Coleman Co., C.A. No. 17802, 2004 WL 2059515, 23 (Del. Ch. 2004) (rejecting comparable

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company analysis where “none of [the defendant’s expert’s] ‘comparables’ was truly comparable

to [the subject company] in any meaningful sense, and none of them had economics similar to

[the subject company’s]”).

With respect to Morgan Stanley’s Precedent Transactions Analysis, because of Plaintiff’s

suit, Defendants disclosed that the large time gap between certain selected precedent transactions

was attributable to the sparsity of transactions during the relevant time period. Defendants also

disclosed that the targets of the transactions selected for this analysis were all U.S.-based life

insurance companies and the acquirers were all strategic buyers. This previously omitted

information was material to Symetra stockholders because it enabled them to determine for

themselves whether the transactions selected were, indeed, comparable to the Symetra-Sumitomo

transaction. It was also important that Defendants disclosed that the acquirers were all strategic

buyers. Strategic buyers, like Sumitomo, generally pay higher premiums than financial buyers

due to the fact that they can often take advantage of synergies.

Finally, with respect to Morgan Stanley’s Precedent Transactions Analysis, Defendants

disclosed the forward P/E ratio and Price to Book Value of each transaction. Prior to this

disclosure, the stockholders were only provided with a summary of the multiples. There was no

way for Symetra stockholders to consider the actual distribution of individual multiples or know

whether that summary was accurate because the individually observed forward P/E ratio and Price

to Book Value Ratio of each transaction were not disclosed. Because of this disclosure,

stockholders were provided with the ability to determine whether each selected transaction was

in fact comparable to the Symetra-Sumitomo transaction.

Courts in Delaware, where Symetra is incorporated, have held that the multiples

underlying the precedent transactions analysis constitute material information. See, e.g.,

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Transcript of Record at 43, Turberg v. ArcSight Inc., C.A. No. 5821-VCL (Del. Ch. Sept. 20,

2011) (“[I]f you were to consider what really constitutes a fair summary, then the background

multiples should be on there, just like they’re in there when you give them to the board .... [Y]ou

would never see a board book that would go to the board without the background multiples.”); In

re Celera Corp. S’holders Litig., No. 6034-VCP, 2012 WL 1020471, 32 (Del. Ch. Mar. 23, 2012),

aff’d in part & rev’d in part, 59 A.3d 418 (Del. 2012) (“[A] fair summary of a comparable

companies or transactions analysis probably should disclose the market multiples derived for the

comparable companies or transactions.”). Thus, the disclosure of this information was material

because it enabled Symetra stockholders to have a comprehensive understanding of the financial

analyses provided by Morgan Stanley and to more accurately determine what weight, if any, to

place on Morgan Stanley’s fairness opinion in making their decisions in connection with the

Merger.

The Supplemental Disclosures also provided stockholders with significant additional

information concerning the background of the Merger. In particular, they provided additional

information about the confidentiality agreements Symetra entered into with other potential

acquirers and the customary standstill restrictions contained therein, including the fact that the

confidentiality agreements did not contain “don’t ask don’t waive” provisions that would prevent

the parties from making a superior bid. This information was important to stockholders because

it gave Symetra stockholders a more fulsome picture of the sales process. Knowledge that the

potential bidders were not subject to a standstill agreement was material because it signaled to

stockholders that many of the other most likely acquirers of the Company were free to make a

better offer to acquire the Company, subject to the deal protection devices contained in the Merger

Agreement.

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Absent this disclosure, Symetra stockholders would have been forced to make a

determination regarding how to vote their shares without critical material information regarding

whether or not the entities most likely to make a topping bid would be legally permitted to do so.

Risks of Continued Litigation

The parties also agreed to confirmatory discovery, including the deposition of Defendant

Marra, the Company’s President and CEO, to allow Plaintiff to confirm that the Settlement is fair,

reasonable, and adequate. The deposition of Defendant Marra revealed that Symetra could point

to plausible reasons to believe that no other suitor would have been able to offer a higher price

for Symetra. For instance, Defendant Marra testified as followed on this topic:

Q: Was there any concession or consideration given by Symetra in exchangefor being allowed to engage in discussions regarding unsolicited proposalsuntil the time of the stockholder approval?

A: Other than the deal itself, no.

Q: Since the signing of the merger agreement, has Symetra been contacted byother entit[ies] regarding the potential acquisition of Symetra?

A: No.

See Marra Tr. at 53:23-25, 54:1-7. Swope Decl. Ex. 7.

Based on the deposition of Defendant Marra, it seems that the Board was

adequately informed and knew its responsibility to maximize stockholder value:

Q: Can you tell me what your understanding is of the fiduciary duties you oweto the stockholders in a sales context?

A: In general terms, to insure that the share price is fair an[d] equitable relativeto the underlying value of the company, and the best reason is in the bestinterest of stockholders.

Q: Do you feel that you have complied with your fiduciary duties in agreeingto sell Symetra to Sumitomo for $32 per share?

A: Yes, I do.

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Q: Do you believe your fellow Board member complied with their fiduciaryduties?

A: I do.

See Marra Tr. at 58:11-25, 59:1-4. Id., Ex. 7.

The benefits of the Settlement must also be balanced against the expense and delay of

litigating numerous pretrial disputes. While Plaintiff believes that her claims have substantial

merit, Defendants’ liability was by no means a foregone conclusion. The outcome of the litigation

was uncertain and, were the case to proceed, Defendants would argue that they exercised valid

“business judgment” with respect to all aspects of the Merger. The presumption of the business

judgment rule favors Defendants and creates a significant risk that Plaintiff would not have

prevailed. The likelihood of obtaining an injunction prior to the stockholder vote was uncertain

given the requirement to demonstrate a significant likelihood of success on the merits and

irreparable injury.

The parties heavily litigated the Action. Indeed, Defendants vigorously opposed Plaintiff’s

claims as demonstrated through their motion practice. On September 11, 2015, Defendants filed

a Motion to Dismiss Plaintiff’s Complaint. Defendants also opposed Plaintiff’s September 24,

2015 motion to amend her complaint. Absent the Settlement, Defendants surely would have

continued to vigorously fight Plaintiff throughout the litigation.

Moreover, given the time constraints involving the impending stockholder vote on the

Merger, Plaintiff may not have been able to present the Court with a complete factual record in

support of a motion for injunctive relief, thus further reducing her chances of success. Despite

these risks, the Settlement provided Symetra stockholders with a large portion of the relief sought

by Plaintiff by providing significant material information that enhanced each stockholder’s ability

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to make a fully informed vote on the Merger. A balancing of these considerations supports

approval of the Settlement.

In summary, Plaintiff believes that her case is meritorious, and the benefits of the

Settlement address the claims and relief sought while eliminating the risk, expense, and

uncertainty of continued litigation. An evaluation of the benefits of the settlement must be

tempered by the recognition that any compromise involves concessions on the part of the settling

parties. Indeed, the very essence of a settlement agreement is compromise, “‘a yielding of

absolutes and an abandoning of highest hopes.’” Officers for Justice v. Civil Service Commission,

688 F.2d 615, 624 (9th Cir. 1982) (citation omitted).

Naturally, the agreement reached normally embodies a compromise; in exchangefor the saving of cost and elimination of risk, the parties each give up somethingthey might have won had they proceeded with litigation.

Id. (citation omitted). Accordingly, the fact that the Settlement Class potentially could have

achieved a better recovery after trial does not preclude the Court from finding that the Settlement

is fair, reasonable, and adequate.

VII. CLASS CERTIFICATION FOR PURPOSES OF SETTLEMENT IS PROPER

As part of the Settlement, the Parties have agreed to the certification of a non-opt-out

Settlement Class defined as:

all record and beneficial owners of common stock of Symetra who owned sharesof Symetra common stock at any time during the period beginning on August 11,2015, through February 1, 2016 (the “Class Period”), including any and all of theirrespective successors in interest, successors, predecessors in interest, predecessors,representatives, trustees, executors, administrators, heirs, assigns or transferees,immediate and remote, and any person or entity acting for or on behalf of, orclaiming under, any of them, and each of them, together with their predecessors,

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successors and assigns (collectively, the “Class”).5

In the settlement context, class certification criteria are easily met because the class is

unified by a common interest. There is no doubt that this Settlement Class meets all of the

requirements for certification under Washington Civil Rule 23.

1. The Settlement Class Meets the Requirements of Washington Civil Rule23(a).

The Settlement Class easily meets the four requirements of numerosity, commonality,

typicality, and adequacy of representation required by Washington Civil Rule 23(a). First, it is

undisputed that the Settlement Class consists of hundreds or thousands of individuals who own

over 116 million outstanding shares of Symetra common stock, making them so numerous that it

is impractical for each of them to bring their claims individually before the court. See Zimmer v.

City of Seattle, 19 Wn.App. 864, 867, 578 P.2d 548, 550 (1978). Second, commonality is satisfied

in that there is at least one issue common to Class members. Hanlon v. Chrysler Corp., 150 F.3d

1011, 1019 (9th Cir. 1998). Issues common as to the Settlement Class include, inter alia, whether

Defendants violated the fiduciary duties owed to Settlement Class members, whether the

consideration to be paid for the Symetra shares pursuant to the Merger Agreement is fair and

reasonable, and whether one or more of Defendants engaged in a scheme to benefit themselves at

the expense of Symetra’s public stockholders. Third, Plaintiff’s claims share a common element

with, and therefore are typical of, those of the Settlement Class members, because the claims of

both Plaintiff and all Settlement Class members are based upon their ownership of Symetra

common stock during the period in which the Action alleges that Defendants violated their duties

5 Excluded from the Class are Defendants, members of the immediate family of any Individual Defendant, any entityin which a Defendant has or had a controlling interest and the legal representatives, heirs, successors or assigns ofany such excluded person.

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to Symetra stockholders. See Oda v. State, 111 Wn.App. 79, 89, 44 P.3d 8, 13 (2002). Finally,

Settlement Class members have been fairly and adequately represented because Plaintiff and her

counsel have no disabling conflicts of interest, and Plaintiff’s Counsel are well qualified and have

vigorously prosecuted and settled the Action on her behalf. See De Funis v. Odegaard, 84 Wn.

2d 617, 529 P.2d 438 (1974); Marquardt v. Fein, 25 Wn.App. 651, 656-57, 612 P.2d 378, 381-

82 (1980).

2. The Settlement Class Should Be Certified Under Washington Civil Rule23(b)(1)-(2).

Plaintiff’s claims were predominantly for injunctive and other equitable relief, seeking to

enjoin the Merger. Moreover, the relief obtained through the Settlement Class – dissemination of

the Supplemental Disclosures – is entirely equitable in nature. In these circumstances, courts have

routinely found that certification of a non-opt-out settlement class is appropriate. See, e.g., In re

Wm. Wrigley Jr. Co. S’holders Litig., No. 3750-VCL, 2009 WL 154380, at *1 (Del. Ch. Jan 22,

2009); Nottingham Partners v. Dana, 564 A.2d 1089, 1097-1101 (Del. 1989) (affirming

certification of class action under (b)(2) and refusing party opposing settlement the right to opt

out). The Court should do the same here.

3. The Notice of Pendency and Proposed Settlement Complied withWashington Civil Rule 23(e).

Washington Civil Rule 23(e) requires that notice “of the proposed dismissal or

compromise shall be given to all members of the class in such manner as the court directs.”

Washington Civil Rule 23(e). Further, courts have noted that the Washington rule is identical to

its federal counterpart and thus find federal cases discussing the equivalent rule highly persuasive.

Pickett, 145 Wn.2d at 188,. In its preliminary approval order, the Court directed that notice be

mailed by “United States mail, postage pre-paid, to all members of the Class as of date of the

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consummation of the merger at their last known address appearing in the stock transfer records

maintained by or on behalf of Symetra.” CITE The notice program was designed to reach all

potential Settlement Class members. The mailed notices were comprehensive and fully explained,

in straight-forward language, the background of the Action; described Plaintiff’s claims brought

on behalf of the Settlement Class; the terms of, and reasons for, the settlement hearing; the rights

and options of all Settlement Class members; the date and time of the settlement hearing; and the

date and process by which to object to the Settlement. This notice program was approved by the

Court, complies with the requirements of Washington Civil Rule 23(e), and is similar to notice

procedures approved in other cases. See CLRB Hanson Industries, LLC v. Weiss & Associates,

465 Fed. App’x 617, 2012 WL 20539, at *1 (9th Cir.). In sum, the Settlement Class meets all

criteria for certification and should be certified for purposes of effectuating the Settlement.

Pursuant to the preliminary approval order, Notice was also posted to the websites of

Plaintiff’s counsel.

Additionally, on April 4, 2016, Plaintiff’s Counsel published a press release over

PRNewswire which notified class members of the terms of the settlement, including Plaintiff’s

Counsel’s request for a fee award of $275,000 and reimbursement of expenses up to $15,000, the

May 10, 2016 hearing, and the right of any Class member to appear at the hearing and to object

to the Settlement. The press release directed Class members to the Pomerantz LLP website at

http://pomerantzlawfirm.com/news-accomplishments/symetra and the Keller Rohrback L.L.P.

website at http://krcomplexlit.com/currentcases/shiva-y-stein-v-symetra-financial-corporation-

et-al/, where important documents relating to the Action could be found, including a copy of the

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amended complaint, the MOU, the Notice and the Stipulation, as revised.6

VIII. THE ATTORNEYS’FEES PROVISIONS OF THE SETTLEMENT SHOULDALSO BE APPROVED

Plaintiff’s Counsel are applying for an unopposed award of $275,000 in attorneys’ fees

plus reimbursement of expenses, totaling $13,907.76 incurred in the prosecution of the Action on

a fully contingent basis. Plaintiff’s Counsel respectfully submits that their request is fair and

reasonable in light of the benefits achieved, awards in other similar cases, and other relevant

factors. As with the proposed Settlement, no Settlement Class member has objected to the fees

and expenses application.

A. PLAINTIFF’S COUNSEL’S REQUEST FOR AN AWARD OF ATTORNEYS’FEES AND EXPENSES IS FAIR AND REASONABLE.

In awarding attorneys’ fees in class actions, Washington courts have followed the

substantial benefit doctrine, which recognizes that an award of attorneys’ fees is appropriate when

a party, proceeding in a representative capacity, obtains a result which creates a “substantial

6 Courts scattered across the United States have determined that notice in representative litigation settlements can beaccomplished through a press release without an individualized mailing. See, e.g.,City of Roseville Employees’Retirement System v. Ellison, C.A. No. 6900-VCP (Order) (Del. Ch. June 16, 2014) (approving notice of settlementof derivative litigation where notice was published in Investor’s Business Daily, posted on Oracle’s website, andposted on plaintiffs’ counsel’s websites); City of Tamarac Firefighter Pension Trust Fund v. Icahn, C.A. No. 7597-CB (Order) (Del. Ch. May 16, 2014) (approving notice of settlement of derivative litigation where notice wasdisclosed in a Form 8-K, posted on CVR Energy’s website, and posted on plaintiffs’ counsel’s websites; Seinfeldv. Slager, C.A. No. 6462-VCG (Order) (Del. Ch. Nov. 27, 2013) (approving notice of derivative settlement wherenotice was posted to Republic Services’s website, disclosed in a Form 8-K attaching the stipulation of settlementand all exhibits thereto, posted to plaintiffs’ counsel’s website, and where a summary notice was published via PRNewswire). See also In re Rambus Inc. Derivative Litig., C 06-3513 JF (HRL), 2009 WL 166689 (N.D. Cal. Jan.20, 2009) (settlement of derivative litigation arising out of options backdating was approved after the filing of form8-K, posting on Company website, and issuance of press release on Business Wire); In re MRV Communications,Inc. Derivative Litig., CV 08-03800 GAF MANX, 2013 WL 2897874 (C.D. Cal. June 6, 2013) (settlement ofderivative litigation arising out of options backdating was approved after the filing of form 8-K, posting onCompany website, and publication in Investor’s Business Daily); Feuer v. Thompson, 10-CV-00279 YGR, 2012WL 6652597 (N.D. Cal. Dec. 13, 2012) (settlement of derivative litigation resulting in corporate governancereforms was approved after the filing of form 8-K, posting on Company website, and publication in both The WallStreet Journal and The New York Times); In re Astex Pharmaceuticals, Inc. Stockholders Litig., C.A. No. 8917-VCL (Order) (Del.Ch. Jan. 7, 2015) (approving notice of dismissal of class action and agreement to pay attorneys’fees and expenses where notice was published in Investor’s Business Daily, GlobeNewswire, and caused the noticeto be posted on the Astex Pharmaceuticals, Inc. website.)

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benefit” for the class. See Weiss v. Bruno, 83 Wn.2d 911, 912-13, 523 P.2d 915, 916 ( 1974)

(noting that “[t]he principle [of the common fund doctrine] has been broadened so that it is not

limited to the creation or preservation of monetary funds, but extends to situations where a litigant

confers some other substantial benefit on an ascertainable class, such as preserving the

rights of corporate stockholders.”) (citing Mills, 396 U.S. 375); see also Seattle Trust & Sav.

Bank v. McCarthy, 94 Wn.2d 605, 611, 617 P.2d 1023, 1028 (1980) (noting that as the

Washington Supreme Court “said in Weiss v. Bruno . . . [that the common funds doctrine] has

been broadened to include situations where a litigant confers some other substantial benefit on an

ascertainable class, such as corporate stockholders”). The benefit thus need not have a readily

ascertainable value. See Seattle Trust, 617 P.2d at 1028; Weiss, 523 P.2d at 916.

Here, as discussed above, the substantial benefits conferred on the Settlement Class

through the Supplemental Disclosures justify the fees and expenses sought by Plaintiff’s Counsel

and which Defendants agreed not to oppose. See, e.g., State of Wis. Inv. Bd. v. Bartlett, C. A. No.

17727, 2002 Del. Ch. LEXIS 42, at *17 (Del. Ch. 2002) (“Although no monetary benefit was

created, I do agree that a therapeutic benefit was created by the supplemental disclosures.”), aff’d,

808 A.2d 1205 (Del. 2002); In re Talley Indus., Inc., S’holders Litig., C. A. No. 15961, 1998 WL

191939, 15(Del. Ch. 1998) (“Considering all the circumstances presented, I have no difficulty

concluding that the disclosures made here constitute adequate consideration for the settlement of

the claims asserted and adequately supported the fee requested.”); Tandycrafts v. Initio Partners,

562 A.2d 1162, 1165 (Del. 1989) (“[A] heightened level of disclosure, if attributable to the filing

of a meritorious suit, may justify an award of counsel fees.”).

B. The Requested Agreed-To Attorneys’Fees Award Is Reasonable Under theLodestar Approach.

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The reasonableness of attorneys’ fee awards in class action litigation that produced a

substantial benefit is typically evaluated through the “lodestar” method. Under this approach, the

“lodestar” figure is comprised of the reasonable number of hours spent by counsel multiplied by

the reasonable hourly rate for counsel’s services. See Mahler v. Szucs, 135 Wn.2d 398, 433, 957

P.2d 632, 651 (1998).

As their lodestar records demonstrate, Plaintiff’s Counsel took great care to prosecute the

Action effectively and efficiently. Plaintiff’s Counsel expended 474.4 hours vigorously litigating

the Action for the benefit of Symetra’s stockholders. Swope Decl. Ex. 2 and Declaration of

Gustavo F. Bruckner In Support of Plaintiff’s Motion and Memorandum in Support of Final

Approval of Class Action Settlement and Application for an Award of Attorneys’ Fees and

Reimbursement of Expenses (“Bruckner Decl.”), Ex. 2. Among other things, Plaintiff’s Counsel

reviewed SEC filings and other publicly available documents concerning the sale of Symetra;

drafted and/or revised pleadings, including but not limited to the complaint, amended complaint,

and motion for preliminary injunction; propounded discovery; communicated with their client and

other members of the class; participated in arm’s-length settlement negotiations with Defendants;

engaged in confirmatory discovery to confirm the fairness of the proposed settlement, including

conducting the deposition of Mr. Thomas Marra, President, Chairman, and CEO of Symetra, and;

drafted and revised the settlement documents. The hours expended were reasonably necessary

and substantially contributed to Plaintiff’s Counsel’s ability to secure the benefit conferred on the

Settlement Class. Plaintiff’s Counsel’s hourly rates are also reasonable. Washington district courts

have found that an hourly rate of $305 to $800 is reasonable for this type of class action litigation.

See Pelletz v. Weyerhaeuser Co., 592 F. Supp. 2d, 1322, 1326-7 (W.D. Wash. 2009). Here,

Plaintiff’s Counsel’s average hourly rate after expenses is $579.68 – an eminently reasonable rate

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for work performed by New York City and Seattle law firms that specialize in complex class

action matters. For example, according to National Law Journal in its 2013 Law Firm Billing

Survey, the highest billing rate charged by a partner in a New York City law firm is $1,800 per

hour.7 Plaintiff’s Counsel’s reasonable billing rates multiplied by the number of hours expended

prosecuting the Action brings their total lodestar to $245,550.50. Washington district courts

recognize that a “modest 1.82 multiplier requested by [counsel] falls well within the range of

multipliers approved by Ninth Circuit courts.” Pelletz, 592 F. Supp. 2d at 1328 (citing Vizcaino

v. Microsoft Corp., 290 F.3d 1043, 1052-54 (9th Cir. 2002)). In fact, the Ninth Circuit

acknowledges that most multipliers range from 1.0 to 4.0. Id. Here, Plaintiff’s Counsel’s

multiplier is 1.1, which is below the range of multipliers that Ninth Circuit courts have approved.

Thus, in light of the multipliers commonly approved by courts in Washington, the fee request is

amply justified. Plaintiff’s Counsel also incurred $13,907.76 in expenses while litigating the

Action. Swope Decl. Ex. 3, Bruckner Decl. Ex. 3.

Additionally, a court applying the lodestar method of calculating attorneys’ fees may

choose to enhance the fee by a multiplier. See Bowers v. Transamerica Title Ins. Co., 100 Wn.2d

581, 597, 675 P.2d 193, 204 (1983). “Adjustments to the lodestar are considered under two board

categories: the contingent nature of success, and the quality of the work performed.” Id.

1. The Contingent Nature of the Litigation.

When Plaintiff’s Counsel undertook the Action, it was with the knowledge that they might

have to spend substantial time and resources in the prosecution of these claims without any

assurance of achieving a recovery for the Settlement Class or of obtaining compensation for their

7 http://abovethelaw.com/2014/01/the-biglaw-firms-with-the-highest-partner-billing-rates/ (last accessed on April 1,2016)

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efforts. Even the most diligent efforts by counsel do not guarantee victory at trial. Yet Plaintiff’s

Counsel provided their services under demanding circumstances against Defendants represented

by highly diligent and capable lawyers. Hence, the contingent nature of Plaintiff’s Counsel’s

representation weighs in favor of the requested attorney’s fee award. See Bowers, 675 P.2d at

205 (upholding trial court’s determination “that a 50 percent premium to reflect the contingent

nature of success . . . does not appear to be an abuse of discretion”). As stated by the Second

Circuit in City of Detroit v. Grinnell Corp.:

No one expects a lawyer whose compensation is contingent upon his success tocharge, when successful, as little as he would charge a client who in advance hadagreed to pay for his services, regardless of success. Nor, particularly incomplicated cases producing large recoveries, is it just to make a fee depend solelyon the reasonable amount of time expended.

495 F.2d 448, 470 (2d Cir. 1974), abrogated on other grounds, Goldberger v. Integrated

Resources, Inc., 209 F.3d 43 (2d Cir. 2000)); see also In re Brookdale Bond Litig., No. 02-ML-

1475-DT (RCx), 2005 U.S. Dist. LEXIS 13627, at *44 (C.D. Cal. June 10, 2005) (“The risks

assumed by Class Counsel, particularly the risk of non-payment or reimbursement of expenses, is

a factor in determining counsel’s proper fee award.”). Furthermore, in litigation arising out of

mergers and acquisition, parties and their counsel are forced to expeditiously work to prosecute

the stockholders’ claims and take action to remedy alleged violations as quickly as possible. Thus,

“[p]riority work that delays the lawyer’s other legal work is entitled to some premium.” See

generally Johnson v. Ga. Highway Express, 488 F.2d 714, 718 (5th Cir. 1974).

Plaintiff and Plaintiff’s Counsel were under significant time pressure from the outset of

this litigation. Symetra and Sumitomo announced the Merger in August 11, 2015, and filed the

Preliminary Proxy less than a month later. Plaintiff’s Counsel thereby worked to amend the

complaint, move for a preliminary injunction, and secure meaningful relief prior to the

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stockholder vote. Because of the commitment of time to these efforts, Plaintiff’s Counsel’s ability

to perform other work or accept other cases was necessarily limited.

Accordingly, these circumstances further support the reasonableness of Plaintiff’s

Counsel’s fee request.

2. The Quality of the Work Performed.

It is well settled that stockholder litigation challenging corporate transactions is extremely

difficult and complex. See supra Section V.B.2.e; see also In re Nasdaq Market- Makers Antitrust

Litig., 187 F.R.D. 465, 477 (S.D.N.Y. 1998) (“[C]lass actions have a well-deserved reputation as

being most complex.”) (internal quotation marks omitted); Brody v. Catell, 841 N.Y.S.2d 825, 16

Misc. 3d 1105(A), 9 (N.Y. Sup. Ct. 2007) (characterizing merger litigation as “complex and

difficult litigation”). This litigation involved not only complex legal questions but also difficult

valuation issues that required the assistance and advice of a retained valuation expert. Swope

Decl. Ex. 6. Substantial experience and skill in merger transactions was required in reviewing

SEC filings and the non-public documents obtained through discovery regarding the Merger.

Plaintiff’s Counsel’s efforts required not only substantial experience and expertise in

stockholder litigation, but also the ability to provide legal services under extreme time constraints

against Defendants represented by large, highly-regarded law firms. It was only through the

requisite skill of Plaintiff’s Counsel that the benefits were achieved through the Settlement.

Therefore, the requisite novelty, difficulty, and skill support Plaintiff’s Counsel’s fee request.

Additionally, Plaintiff’s Counsel fought hard and skillfully to bring about a resolution that

materially improved the disclosures provided to Symetra’s stockholders for them to make an

informed decision sufficiently prior to the November 5, 2015 stockholder vote.

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Finally, the amount of Plaintiff’s Counsel’s attorneys’ fees request is comparable to

fee awards in similar cases, reflecting the experience of the counsel negotiating it. The following

cases demonstrate the appropriateness of the amount of Plaintiff’s Counsel’s fee request and are

submitted in support of judicial approval thereof. Swope Decl. Ex. 8, In re Isilon Sys., Inc.

S’holders Litig., No. 10-2-41098-8 SEA (Wash. Sup. Ct. Nov. 29, 2011) (Final J.) (awarding

$690,000 in attorneys’ fees for additional disclosures); Swope Decl. Ex. 9, In re

ZymoGenetics, Inc. S’holders Litig., No. 10-2-32389-9 SEA (Wash. Sup. Ct. Mar. 11, 2011)

(Final J. and Order of Dismissal with Prejudice) (awarding negotiated fees and expenses of

$625,000 for additional disclosures); see also Swope Decl. Ex. 10, Ubaney v. Rubinstein, No.

5459-VCL (Del. Ch. Dec. 1, 2010) (Order and Final J.) (approving attorneys’ fee award of

$500,000 for disclosures); Swope Decl. Ex. 11, In re Interactive Data S’holders Litig., No. 5498-

CC (Del. Ch. Nov. 5, 2010) (Order and Final J.) (awarding fees of $612,500 for disclosures);

Swope Decl. Ex. 12, In re Washington Banking Comp. S’holders Litig., No. 13-2-38689-5 SEA

(Wash. Sup. Ct. Feb. 27, 2015) (Final J.) (awarding fees of $450,000 for disclosures).

Plaintiff and Plaintiff’s Counsel therefore respectfully submit that the results obtained

amply justify the attorneys’ fees sought. Here, Plaintiff’s Counsel submit this is an agreed-to fee-

and-expense award that was subject to arm’s-length negotiation by the parties, coupled with the

valuable benefits conferred on the Settlement Class through the Settlement.

IX. CONCLUSION

In the judgment of Plaintiff’s Counsel, the proposed Settlement is a fair compromise of

the issues in dispute. After weighing the benefits of the Settlement against the uncertainty and

risks of continued litigation, Plaintiff and Plaintiff’s Counsel believe that the proposed Settlement

is fair, reasonable, and adequate and warrants final approval. Plaintiff respectfully requests the

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Court (i) finally approve the proposed Settlement, (ii) enter the Final Order, (iii) finally certify

the Settlement Class, and (iv) approve attorneys’ fees of $275,000 and reimbursement of expenses

of $13,907.76 to Plaintiff’s Counsel.

DATED this 12th day of April, 2016.

KELLER ROHRBACK L.L.P.

By: /s/Karin B. SwopeKarin B. Swope, WSBA #240151201 Third Avenue, Suite 3200Seattle, Washington 98101Telephone: 206/428-0561 / Fax: 206/[email protected]

POMERANTZ LLPGustavo F. Bruckner (Admitted Pro Hac Vice)Samuel J. Adams (Pro Hac Vice pending)Anna Karin F. Manalaysay (not admitted in WA)600 Third AvenueNew York, NY 10016Telephone: 212/661-1100/ Fax: 212/661-8665

Attorneys for Plaintiff

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CERTIFICATE OF SERVICE

I, hereby certify that on the 12th day of April, 2016, a copy of the foregoing was

electronically filed and served via the King County E-Filing system which will send notification

of such filing to following Defense counsel:

Stephen M. RummageBrendan T. ManganDavis Wright Tremaine LLP1201 Third Avenue, Suite 2200Seattle, WA 98101

Steven FoggDavid EdwardsCorr Cronin Michelson Baumgardner Fogg & Moore, LLP1001 Fifth Avenue, Suite 3900Seattle, WA 98154

I hereby certify that on the 12th day of April, 2016, a copy of the foregoing was emailed

and mailed to the following Defense counsel:

Sandra Goldstein ([email protected])Michael Paskin ([email protected])Cravath Swaine & Moore, LLP825 Eighth AvenueNew York, NY 10019

Joshua Slocum ([email protected])Peter Kazanoff ([email protected])Simpson Thatcher & Bartlett LLP425 Lexington AvenueNew York, NY 10017

I certify under penalty of perjury under the laws of the State of Washington that the

foregoing is true and correct.

DATED this 12th day of April, 2016.

s/Karin B. SwopeKarin B. Swope, WSBA #24015

Documents

Brody v. Catell City of Seattle v. Blume Clayton v. … ROHRBACK L.L.P. 1201 Third Avenue, Suite 3200 Seattle, Washington 98101-3052 TELEPHONE: (206) 623-1900 FACSIMILE: (206) 623-3384